Commercial Court in Warsaw orders Google to stop favouring its own price-comparison service in search results

On 14 March 2024 the Commercial Court in Warsaw issued an interim injunction forbidding Google from favouring its own price comparison service, Google Shopping, for users in Poland at the expense of competing services. The injunction was issued at the request of Ceneo.pl sp. z o.o. against Google Ireland Limited. It may have far-reaching effect on the digital market in Poland and the EU.
 
The injunction requires Google, for the duration of the court proceedings, to: (i) stop posting on google.com or google.pl any search results in any place other than the organic search results (ii) stop redirecting web traffic to Google Shopping (iii) stop removing Ceneo links and (iv) stop allowing the placement of advertisements containing the word “ceneo” on the Google search engine website by entities not authorized to do so. 
 
Ceneo was also given two weeks for filing a civil claim against the defendant. According to the information from the media, Ceneo filed a claim against Google on 28 March 2024.
 
So, the current situation in a dispute between Ceneo and Google, as far as we are aware, is as follows:
  Background 
 
The underlying facts are that the claimant brought the case to the Commercial Court in Warsaw after claiming to have observed, since last year, four types of practices by Google that may unfairly disadvantage Google’s rivals and make the entry to the market more difficult, which is against the rules of the Polish Law on Combatting the Unfair Competition of 1993 (as amended).
 
The claimant invoked article 15 of the Polish Law on Combatting the Unfair Competition of 1993 (as amended).
 
Hindering access to the market and making the entry to the market difficult by other market participants is illegal in the light of article 15, section 1 of the invoked Law on Combatting the Unfair Competition. One of the actions which is expressly forbidden under the law is forcing customers to choose a particular business as a contractor or creation of conditions enabling third parties to force customers to purchase goods or services from a particular business. Most probably these are the Ceneo’s assertions in the motion for injunction.
 
From the press announcements we know that Ceneo claimed in its motion, that Google prioritises its own comparison service in search results and redirects web traffic to Google Shopping at the expense of Ceneo and also that Google impedes access to Ceneo by removing search results leading to it.
 
Interestingly, Ceneo claimed also that Google displays unauthorized adverts for Ceneo (so adverts placed by entities other than Ceneo) which could mislead users.
 
Before commencing the claim, Ceneo managed to obtain an opinion from Poland’s competition authority, UOKiK, saying that “Google’s behaviour, if confirmed by proper evidence, could lead to a distortion of competition by giving a competitive advantage to this company without providing a level playing field to its competitors, including Ceneo”.
 
The injunction was made on 14 March 2024. The judge was not obliged to give even headline reasons for the injunction because the Ceneo’s motion was accepted in full.
 
The injunction was then translated into English and should have been delivered to Google Ireland Limited in Dublin. Google then has 14 days to file a complaint with the Court in Warsaw. We have no information whether Google filed a complaint or not.
 
Proceedings in Poland
 
As a general rule, pre-trial discovery is not a recognized concept under Polish law. In order to obtain information in the Polish civil proceedings, a party must first commence a civil claim. But even after filing a civil claim, disclosure duties and tools remain very limited and requests for disclosure can only target specific pieces of evidence and information.
 
In this particular case Ceneo, relied on its own information and its own market analysis supported by the opinion from Poland’s competition authority that Google’s behaviour could lead to a distortion of competition in Poland (if there is sufficient evidence in this respect) and filed a motion with the Court for the legal protection. This tactic turned out to be successful at this stage of the proceedings and Ceneo obtained the required court order.
 
Under Polish law, such a court order can be obtained by the claimant if he is able to demonstrate that:
  Typically, it is difficult to prove the second point, i.e. a legal interest. The claimant has to prove beyond any reasonable doubt that he urgently needs legal protection and the lack of legal protection would cause damage to his business.
 
 
Decision of the Commercial Court in Warsaw
 
The injunction was made on 14 March 2024. It was issued without holding the court hearing and without the defendant being aware of the Ceneo’s motion.
 
The injunction orders Google to stop favouring its own price comparison service, Google Shopping, for users in Poland at the expense of competing services. The judge accepted all arguments raised by the claimant and issued the interim injunction exactly as the claimant demanded. The injunction requires the defendant (Google Ireland Limited), for the duration of the court proceedings, to stop unfair competition practices by:
  In the event of breach of any above-mentioned prohibitions, the Court decided that the defendant will have to pay penalties in the amount of PLN 50,000 (approx. USD 12,500) per each day of the breach.
 
Ceneo was also given two weeks for filing a civil claim against the defendant. According to the information from the media, the statement of claim was filed with the Court in Warsaw on 28 March 2024.
 
Next steps
 
It is hard to predict what is going to happen next. It is most likely that Google will file an appeal and the Ceneo’s motion will be re-examined, taking into account arguments raised by Google.
 
As regards the main case started by Ceneo with filing the statement of claim with the Commercial Court in Warsaw on 28 March 2024, it will go another route. Google will most probably file its statement of defense and the proceedings will go on.
 
This dispute between Ceneo and Google has civil law aspects and anti-competitive aspects.
 
At this stage, the claim brought by Ceneo is based mainly on the unfair competition law. Unfair competition under Polish law is a situation when the market participant seeks to gain an advantage over its rivals through dishonest or deceptive conduct by limiting access to the market to other participants.
 
Google’s conduct can also be analysed from the anti-competitive perspective. Practices that prevent or reduce competition in a market could be seen as anti-competitive.
Google’s conduct can also be qualified as an infringement of collective interests of consumers. Infringement of collective consumers interests occurs when an unlawful or inconsistent with good practices actions of a business affects a certain group of consumers or an unlimited number of consumers. 
 
The Polish President of UOKiK carries out proceedings in cases of practices that infringe collective interests of consumers. These proceedings may be concluded with ordering the suspected business to cease the questioned activities and to pay a fine or a commitment of a business to voluntarily change its behaviour to eliminate infringements.